President Donald Trump and his administration are “actively looking at” suspending the writ of habeas corpus for migrants, denying them their constitutional right to challenge in court if the United States government is legally detaining them, Stephen Miller told reporters on Friday.
The White House deputy chief of staff, who has crafted severe and callous immigration policy throughout both of Trump’s terms, cited the Constitution and referred to habeas corpus as a “privilege” that “can be suspended in time of invasion.” The Constitution reads, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
While the clause does not specifically note who in Washington has the power to invoke it, the resounding consensus among legal and constitutional scholars is that Congress has to sign off on suspending habeas corpus. Supreme Court Justice Amy Coney Barrett, in an essay co-written with the attorney Neal Katyal for the National Constitution Center, also said that revoking the writ is up to Congress.
In the country’s history, the writ of habeas corpus has only been revoked four times, most notably by Abraham Lincoln during the Civil War. It was also revoked in the Philippines in 1905, in Hawaii after Pearl Harbor, and in 1871 to fight the Ku Klux Klan in South Carolina.
Miller was asked about the possibility of revoking this legal protection just hours after a federal judge in Vermont had ordered the release of Rumeysa Öztürk, the Tufts University student who was taken off the street by immigration authorities in March. Öztürk, a Turkish-born Fulbright scholar studying in a PhD program in Massachusetts, had a legal F-1 visa. Last year, she, along with three other people, wrote an op-ed in support of the Palestinian people and the Tufts Community Union Senate resolution that the school divest from companies with direct or indirect ties to Israel.
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Öztürk was arrested for engaging in “activities in support of Hamas,” the Department of Homeland Security said in a statement at the time.
The Vermont judge, a Clinton appointee, granted bail for the graduate student who had been detained in a Louisiana ICE facility for over six weeks. “There is absolutely no evidence that she has engaged in violence or advocated violence. She has no criminal record,” Judge William Sessions said at the end of Friday’s three-hour hearing. “She has done nothing other than essentially attend her university and expand her contacts within the community in such a supportive way.”
